5 Compensation for miscarriages of
justice (Part 12)
Background
140. Clause 143 of the Bill would reverse a recent
decision of the Supreme Court[98]
concerning the test to be applied when deciding whether a person
whose conviction has been quashed is entitled to compensation
for a miscarriage of justice. The new clause would make it a
condition of compensation that the new or newly discovered fact
"shows beyond reasonable doubt that the person was innocent
of the offence" of which they were convicted.
141. Under the current law, section 133 of the
Criminal Justice Act 1988 requires the Secretary of State to pay
compensation where a person's conviction for a criminal offence
has been reversed or he has been pardoned on the ground that a
new or newly discovered fact shows beyond reasonable doubt that
there has been a miscarriage of justice. That statutory provision
was enacted to implement Article 14(6) of the International Covenant
on Civil and Political Rights ("ICCPR"), which provides:
14(6) When a person has by a final decision been
convicted of a criminal offence and when subsequently his conviction
has been reversed or he has been pardoned on the ground that a
new or newly discovered fact shows conclusively that there has
been a miscarriage of justice, the person who has suffered punishment
as a result of such conviction shall be compensated according
to law, unless it is proved that the non-disclosure of the unknown
fact in time is wholly or partly attributable to him.
142. Article 3 of Protocol 7 to the ECHR makes
almost identical provision for a right to compensation for wrongful
conviction. Although the UK is not a signatory to Protocol 7
to the ECHR, this is not because of any concern that UK law is
not compatible with Article 3 of that Protocol.[99]
The UK ratified the ICCPR in May 1976.
143. The Criminal Justice Act 1988 does not define
the term "miscarriage of justice" and the test to be
applied by the Secretary of State when determining applications
for compensation for miscarriages of justice has been the subject
of litigation. In the case of Adams in 2011, the UK Supreme
Court interpreted s. 133 of the Criminal Justice Act to mean that
there is a right to compensation in two categories of case:
(1) where the new (or newly discovered) fact showed
the applicant to be "clearly innocent"; and
(2) where the new fact "so undermines the evidence
against the applicant that no conviction could possibly be based
on it."
144. In the subsequent case of Ali, the
Divisional Court agreed with the Supreme Court's interpretation
of the statutory provision, but reformulated the second category
of case in order to make it more readily understood by lawyers
advising claimants for compensation and the Secretary of State:[100]
in addition to the "clearly innocent", there is a statutory
right to compensation for claimants who have "established,
beyond reasonable doubt, that no reasonable jury (or magistrates)
properly directed as to the law, could convict on the evidence
now to be considered."
145. The Bill would reverse these court judgments
and insert instead a statutory definition of "miscarriage
of justice", according to which the Secretary of State would
only pay compensation for a miscarriage of justice where the new
or newly discovered fact (on the basis of which the conviction
was reversed) "shows beyond reasonable doubt that the person
was innocent of the offence" of which they were convicted.[101]
In Public Bill Committee, the Minister explained that the purpose
of the clause is to "restore the definition of a miscarriage
of justice to the pre-Adams position", in other words
the test of "clear innocence [...] based on the judgment
of Lord Steyn in the case of Mullen."[102]
146. According to the Explanatory Notes to the
Bill, about 40 to 50 applications for compensation under s. 133
are received each year, of which some 2 or 3 are found to be eligible
for compensation.[103]
147. JUSTICE, which has historically campaigned
on miscarriages of justice and was instrumental in the setting
up of the Criminal Cases Review Commission in 1997, is opposed
to the change.[104]
It argues that none of the notorious miscarriages of justice which
led to the establishment of the Criminal Cases Review Commission
would qualify for compensation under the proposed new test, which
it says is perverse. It says that restricting compensation for
miscarriages of justice to cases where the applicant can demonstrate
his innocence is unduly narrow and does not provide adequate redress
in cases where the criminal justice system has gone seriously
wrong. It can see no justifiable reason for overturning the decisions
of the courts in Adams and Ali:
"Many of those who have had their convictions
overturned have spent significant periods in prison and have endured
hardship, stigma and deprivation as the result of wrongful conviction.
It is unfair and unreasonable to deny them compensation for that
treatment."
148. Narrowing eligibility for compensation for
miscarriages of justice raises a very significant human rights
issue: whether it is compatible with the presumption of innocence,
as protected by Article 6(2) ECHR, the common law, and Article
14(6) ICCPR.
The presumption of innocence
149. Article 6(2) ECHR provides that "everyone
charged with a criminal offence shall be presumed innocent until
proved guilty according to law." The presumption of innocence
is also a constitutional principle long recognised as fundamental
by the common law. As Baroness Hale said in Adams, the
wider test preferred by the Supreme Court in that case:
"is the more consistent with the fundamental
principles upon which our criminal law has been based for centuries.
Innocence as such is not a concept known to our criminal justice
system. We distinguish between the guilty and the not guilty.
A person is only guilty if the state can prove his guilt beyond
reasonable doubt ... He does not have to prove his innocence at
his trial and it seems wrong in principle that he should be required
to prove his innocence now."
150. JUSTICE points out that the European Court
of Human Rights has applied the presumption of innocence to a
variety of scenarios following acquittal and found violations
of the right to be presumed innocent where a statement or decision
reflects an opinion that the person is guilty, unless he has been
proved so according to law. It regards it as a clear interference
with the presumption of innocence if compensation is not awarded
following the quashing of a conviction because the Secretary of
State is not satisfied of the applicant's innocence.
151. The Government's human rights memorandum,
however, said that it had considered whether the new "innocence"
test in the Bill would interfere with the right protected by Article
6(2) ECHR to be presumed innocent until proven guilty but had
concluded that it would not.[105]
Its reasoning was that Article 6(2) does not apply to an application
for compensation for a miscarriage of justice. In the Government's
view, Article 6(2) applies to criminal proceedings, or to proceedings
closely linked to them, and it is unlikely that a court would
hold that the Secretary of State's determination of an application
for compensation for a miscarriage of justice would be sufficiently
closely linked to the original criminal proceedings for Article
6(2) to apply. Indeed, the Government contended that the Supreme
Court has already so held, citing those parts of the judgments
in Adams in which the Supreme Court held that the presumption
of innocence is not infringed by the statutory scheme in s. 133
Criminal Justice Act 1988.
152. In the case of Y v Norway, Article
6(2) has been held by the Strasbourg Court to be engaged in civil
proceedings for compensation payable following a person's acquittal.[106]
The Government acknowledged that authority but argued that it
is different because in that case there was significant proximity
between the criminal trial and the compensation proceedings, which
were conducted in the same forum and decided within a day of each
other.[107] A determination
of an application for compensation for a miscarriage of justice,
in the Government's view, is sufficiently distinct from the criminal
process as not to engage the presumption of innocence in Article
6(2).
153. The Government was therefore satisfied about
the compatibility of the proposed scheme with the presumption
of innocence in Article 6(2) ECHR. Its reasons for the proposed
new test being compatible with the presumption of innocence was
therefore the essentially technical argument that Article 6(2)
does not apply to a determination by the Secretary of State of
an application for compensation, because such a determination
does not constitute "criminal proceedings" or is not
sufficiently closely linked to such proceedings.
154. Since the introduction of the Bill, the
Government's argument has been considered and rejected by the
Grand Chamber of the European Court of Human Rights in the case
of Allen v UK.[108]
In that case the Court held that Article 6(2) applies to an application
for compensation for a miscarriage of justice (rejecting the Government's
argument that it does not apply), and in reaching its decision
that there had been no violation of the applicant's right to be
presumed innocent the Court said "what is important above
all is that the judgments of the High Court and the Court of Appeal
did not require the applicant to satisfy Lord Steyn's test of
demonstrating her innocence" - the very test that would be
reinstated by the provision in the Bill.
155. We asked the Government to provide a supplementary
memorandum setting out the Government's assessment of the compatibility
of clause 143 of the Bill with the presumption of innocence in
Article 6(2) ECHR in light of the judgment in Allen v UK,
and in its letter dated 29 July the Government promised to provide
a substantive response once it had considered the implications
of the judgment. The Government provided this assessment in a
letter dated 7 October 2013 from Rt Hon Damian Green MP. The
Government says that in light of the judgment of the European
Court of Human Rights in Allen v UK, it has reconsidered
whether the proposed amendment to s. 133 of the Criminal Justice
Act 1988 would interfere with the right protected by Article 6(2)
and concluded that it does not. The Government acknowledges that
in the passage cited above "the Court [...] looks to be signalling
its objection to a clear innocence type test", but the Government
"does not consider these statements to be determinative of
the question", for a number of different reasons. The Government
argues that the Court cannot be taken to have determined the compatibility
of the proposed new test with the presumption of innocence in
Article 6(2) because that was not the exact issue that was before
the Court. It argues that the test of which the Court clearly
disapproved in Allen, that the applicant for compensation
must be able to demonstrate their innocence, is not the same as
the test proposed by the amendment in clause 143 of the Bill:
the effect of the provision in the Bill, it says, is not that
the applicant has to "demonstrate [their] innocence",
but that the Secretary of State has to be satisfied that the new
fact on which the conviction was quashed shows clearly that the
applicant did not commit the offence for which he or she had been
convicted.
156. We have considered the Government's reasons
for concluding that the proposed new test is compatible with the
presumption of innocence in Article 6(2), but we are not persuaded
by them. In our view it is now clear beyond doubt from the recent
judgment of the Grand Chamber of the European Court of Human Rights
in the case of Allen v UK that the proposed new test in
clause 143 of the Bill is incompatible with the right to be presumed
innocent in Article 6(2) ECHR. The Court accepted that more than
a mere acquittal is required in order for a miscarriage of justice
to be established, but subject to an important proviso: "provided
always that they did not call into question the applicant's innocence".[109]
Application of the proposed new test for a miscarriage of justice
(if and only if the new or newly discovered fact shows beyond
reasonable doubt that the person was innocent) will inevitably
call into question the applicant's innocence where the application
is refused. The real substance of the concern about the presumption
of innocence is that a rejection of an application for compensation
for a miscarriage of justice on the ground that the new or newly
discovered fact does not establish the person's clear innocence
suggests that the person may still have been guilty of the offence
even though that has not been proved beyond reasonable doubt.
157. In our view, requiring proof of innocence
beyond reasonable doubt as a condition of obtaining compensation
for wrongful conviction is incompatible with the presumption of
innocence, which is protected by both the common law and Article
6(2) ECHR. We recommend that clause 143 be deleted from the Bill
because it is on its face incompatible with the Convention.
Clause 143, page 115, line 19
Leave out clause 143
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158. The Government's answers to our other questions about
this provision indicate that the Government does not expect the
new clause to have a significant impact on the number of applicants
who prove eligible for compensation,[110]
and it is not therefore intended to save significant sums in the
amount paid out in compensation. The savings anticipated are
in the region of £100,000 per annum in the form of legal
costs which the Government says will be saved because of the greater
certainty that the new definition will bring. Deleting the clause
as we recommend therefore will not give rise to significant costs.
98 R v Adams [2011] UKSC 18. Back
99
The reason given for the UK not ratifying Protocol 7 to the ECHR
in the Government's Review of International Human Rights Treaties
in 2004 was that UK law was not compatible with Article 5 of Protocol
7, concerning equality between spouses (an obstacle to ratification
which a Government amendment to the Equality Act 2010 was intended
to remove). Back
100
R (Ali and others) v Secretary of State for Justice [2013]
EWHC 72 (Admin) (25 January 2013). Back
101
Clause 132(1) of the Bill, inserting new subsection (1ZA) into
s, 133 of the Criminal Justice Act 1988. Back
102
PBC 11 July 2012 c463 (Damian Green MP). Back
103
EN para. 69. Back
104
JUSTICE, Anti-social Behaviour, Crime and Policing Bill: Written
evidence to the Joint Committee on Human Rights and the Public
Bill Committee, paras 55-66 (June 2013). Back
105
Human Rights Memorandum, paras 220-224. Back
106
Y v Norway (2003) 41 EHRR 87. Back
107
Human Rights Memorandum, para. 222. Back
108
Application No. 25424/09 (12 July 2013) Back
109
Ibid. at para. 129. Back
110
Letter dated 29 July 2013 from Rt Hon Damian Green MP, Back
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